 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 2, 2005 Mr. Steve Aragon
OR2005-06948 Dear Mr. Aragon: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 229277. The Texas Health and Human Services Commission (the "commission") received a request for information pertaining to contracts between Public Consulting Group, Inc. ("PCG") and the former and current contracted administrators of the state's Medicaid Program: National Heritage Insurance Company ("National") and ACS State Healthcare ("ACS"), respectively. The information at issue pertains to the third party recovery and data matching services provided in connection with the Medicaid Program of the State of Texas. You state that you have already released some of the requested information but claim that a portion of the submitted information is excepted from disclosure under section 552.101 of the Government Code.(1) We have considered the exception you claim and reviewed the submitted information. Initially, we note, and you acknowledge, that the commission has not complied with the time periods prescribed by section 552.301 of the Government Code in seeking an open records decision from this office. When a governmental body fails to comply with the procedural requirements of section 552.301, the information at issue is presumed public. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). To overcome this presumption, the governmental body must show a compelling interest to withhold the information. See Gov't Code § 552.302; Hancock, 797 S.W.2d at 381. Section 552.101, which encompasses "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," generally can provide a compelling reason to overcome the presumption of openness. See Open Records Decision No. 630 (1994) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Because section 552.101 can provide compelling reasons to overcome the presumption of openness, we will address the applicability of this exception to the submitted information. You contend that Medicaid recipient information is excepted under section 552.101 as information made confidential by law. Sections 12.003 and 21.012 of the Human Resources Code prohibit the disclosure of information concerning clients of a state plan for assistance, except for a purpose directly connected with the administration of the plan. See Hum. Res. Code §§ 12.003, 21.012; see also 40 T.A.C. §§ 71.4 (information may be released if it is for the purposes reasonably necessary for administering the assistance program); Open Records Decision Nos. 584 (1991), 166 (1977). Section 12.003 provides in relevant part: (a) Except for purposes directly connected with the administration of the department's assistance programs, it is an offense for a person to solicit, disclose, receive, or make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of the names of, or any information concerning, persons applying for or receiving assistance if the information is directly or indirectly derived from the records, papers, files, or communications of the department or acquired by employees of the department in the performance of their official duties. Hum. Res. Code § 12.003(a). The term "assistance" in sections 12.003 and 21.012 of the Human Resources Code includes "all forms of assistance and services for needy persons authorized by Subtitle C." Hum. Res. Code § 11.001(4); see also id. § 31.001 et seq. (subtitle C, pertaining to assistance programs). In Open Records Decision No. 584 (1991), this office determined that "[t]he inclusion of the words 'or any information' juxtaposed with the prohibition on disclosure of the names of the department's clients clearly expresses a legislative intent to encompass the broadest range of individual client information, and not merely the clients' names and addresses." Id. at 3. Consequently, it is the specific information pertaining to individual clients, and not merely the clients' identities, that is made confidential under section 12.003. See also Hum. Res. Code § 21.012(a) (requiring provision of safeguards that restrict use or disclosure of information concerning applicants for or recipients of assistance programs to purposes directly connected with administration of programs). You indicate that the submitted documents contain information pertaining to individual recipients of Medicaid benefits. We find that release of such information in this instance is not a release for purposes directly connected with the administration of the Medicaid program. See 40 T.A.C. §§ 71.4, 71.11-71.14; see also 42 C.F.R. § 431.302 (setting forth purposes directly related to state Medicaid and Medicare administration). Thus, we determine that the commission must withhold specific information pertaining to individual Medicaid recipients, which you have marked, pursuant to section 552.101 of the Government Code in conjunction with section 12.003 of the Human Resources Code. The remaining submitted information must be released to the requestor. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at (877) 673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Tex. Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at (512) 475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, L. Joseph James
c: Mr. Anthony M. Guerino, II
Footnotes 1. The commission also notes that the request encompasses some information that may implicate the proprietary interests of PCG and ACS. Pursuant to section 552.305, the commissioin notified the interested parties, PCG and ACS of the request and of their right to submit arguments to this office as to why their information should not be released. See Gov't Code § 552.305(d) (permitting interested third party to submit to attorney general reasons why requested information should not be released); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure in certain circumstances). However, ACS and PCG have responded to the notices and state that they do not object to the release of their information; therefore, the submitted information pertaining to these companies may not be withheld as proprietary information. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |